Chapters

If I leave I'll lose my rights

There are many mistaken beliefs about property and financial entitlements on the breakdown of marriage. These cause confusion and often make it difficult to reach a fair and just settlement. Many people believe that the person who leaves the children or the matrimonial home will lose their rights to a share of the property. Behind this is the idea that whoever abandons the marriage deserves nothing. This is wrong. Each partner in the course of the marriage has earned a share in the property and does not lose it simply because they decide it is no longer possible or desirable to remain in the house or the marriage.

I can keep inheritances and gifts

Again a spouse is not always entitled to keep gifts and inheritances from their family. It does not usually make much difference whether the gift from one side of the family was expressed to be for one spouse or both. In either case it will be seen as a contribution made on behalf of the person whose family made the gift. As with pre-marital assets, the importance of gifts and inheritances decreases as they become mixed with other matrimonial property and as the other spouse contributes directly or indirectly to their maintenance or improvement. Where the gift or inheritance was received shortly before the separation, the spouse who received it will have a good argument that they should receive its full value in the division of property.

Women always get the best deal

What is not recognised by those who make this statement is that the amount women receive in a division of property often has to cover both themselves and their children. In the short term this may mean that the actual amount awarded to the woman and children will be greater than the man receives but studies here and overseas show that men do better in the long run. A man with his greater income earning and borrowing capacity — and without children to care for — is able to build quickly on his share of the property. A woman who has residence of the children may not wish or be able to secure full-time employment. If she has been involved in full-time childcare during the marriage, she may not have the necessary skills to find a good job. A divorced or separated woman’s capacity to support herself may be a long way below her husband’s and the Court will often give women marginally more than men to compensate for this and to meet the greater needs of women and children. In the case of younger couples where women do have job skills or careers and where there are no children, women do not receive more than men in the division of property.

I owned it before marriage so it's mine

Just because a spouse owned a particular piece of property before marriage does not mean they will automatically have total rights to the property, or its monetary value, when the marriage ends. The property will be taken into account as a contribution by its owner, but over time it is assumed that both spouses will have contributed directly and/or indirectly to its maintenance or improvement. In other words, the longer the marriage, the less important are pre-marriage contributions in the final division of property.

I worked hard for this business so it's mine

Many spouses who have worked hard during a marriage to build up a family business do not consider that the other spouse is entitled to a share of it. They claim that the other spouse never worked in the business or only contributed as an ordinary employee and should only be paid the equivalent of wages. But where the other spouse has answered the telephones, arranged work for the business, kept the books or entertained business associates, the Court will consider these efforts as a contribution to the success of the business. Even where the other spouse has never worked in the business, if they have taken on the responsibilities of caring for the house and children they will be regarded as having made an indirect contribution by freeing the other spouse to put more time and effort into the business. Often the other spouse will have worked in another job to provide family income at times when the business was not as profitable and this too will be regarded as a contribution. This does not mean that the business will have to be shared equally between the spouses. The Court may give greater weight to the business spouse’s direct contributions in some circumstances.

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